Wednesday, February 22, 2017

DOMESTIC VIOLENCE AFFECTS CUSTODY UNDER ARIZONA LAW

Nearly 20 people per minute are physically abused by an intimate partner in the United States, according to the National Coalition Against Domestic Violence (NCADV).[1] This equates to more than 10 million victims per year, both women and men.  Domestic violence harms individuals of all ages in physical, emotional, and even economic ways, but what many people don’t know is that it also affects custody of children.

Victims of domestic violence are protected by Arizona’s laws, which provide that all of the following constitutes domestic violence:

·       Sexually assaulting or causing serious physical injury to a family or household member
·     Attempting to sexually assault or cause serious physical injury to a family or household member
·      Making family or household members afraid that they are about to suffer immediate physical injury
·      Engaging in a pattern of abusive behaviors that are serious enough to permit a court to issue a protective order for the victimized parent or child

Acts that qualify as domestic violence can include threats, harassment, intimidation, stalking, unlawful imprisonment, trespassing, damage to property, kidnapping, photographing and secretly watching victims without their consent, physical assault, and many other things.  In our modern society, abuse can also be inflicted through electronic means, including the telephone and Internet.  Those protected under the law include current and former spouses, people who live together or used to live together, people who have a child together, relationships in which one of the partners is pregnant with the other partner’s child, people related by blood or marriage, children, and those who are or were in a romantic or sexual relationship.

Arizona has enacted statutes creating “domestic violence presumptions” in child custody cases, essentially stating that an abuser’s actions and future potential actions would be harmful to the child.  In other words, if the court finds that a parent committed acts of domestic violence against the other parent, then it is akin to abusing the child, and the judge must presume that giving custody to the abuser is not in the child’s best interests.  However, the presumption is “rebuttable,” and the court may decide that the perpetrator has overcome the presumption by evaluating the following factors:

·      Whether the perpetrator proved that being awarded sole or joint custody is in the child’s best interests
·      Whether the perpetrator successfully completed a batterer’s prevention program
·    If applicable, whether the perpetrator successfully completed alcohol or drug abuse counseling ordered by the court
·     Whether the perpetrator successfully completed parenting classes ordered by the court
·    Whether the perpetrator has committed additional acts of domestic violence against anyone else,

In determining which parent should have custody of the child, Arizona judges must consider the best interests of the child, which necessarily involves the contemplation of domestic violence.  Specifically, two of the factors that Arizona judges consider are (1) whether there has been domestic violence or child abuse and (2) whether either parent was convicted of falsely reporting child abuse or neglect. 

The bottom line is this:  In Arizona, a parent who is guilty of domestic abuse is less likely to get custody.  In fact, if there is evidence of domestic violence, parents cannot share joint legal custody.  In very serious cases where there is a pattern of child abuse, a petition can be filed asking the court to terminate a parent’s rights.  Termination means that a parent loses all rights to both the physical and legal custody of a child.

The best interests of the child—and the protection of the child—is the Arizona Court's main priority. Although Arizona has created a presumption that it is harmful to the child, and not in his/her best interest for the perpetrator of domestic violence to have sole or joint legal decision-making authority, some cases still slip through the cracks.  Therefore, if you are a victim of domestic violence, it is important to seek legal advice to better protect yourself and your family.

Jacinda Chen & Gary Frank


      At the Law Firm of Gary J. Frank P.C., both Gary Frank and attorney Hanna Juncaj are strong litigators and compassionate counselors. Gary Frank is a Family Law Attorney with over 30 years of experience as a litigator and mediator, which includes having acted in the capacity of a Judge Pro Tempore in the Maricopa County Superior Court; and serving on the Governor's Child Abuse Prevention Task Force. Hanna Juncaj is a highly-skilled attorney with a passion for Family Law and children's issues. We handle Family Law cases in the areas of divorce, custody (now called "Legal Decision-Making and Parenting Time), relocation (move-away), division of property, spousal and child support, modification and enforcement actions, grandparent and non-parent rights, and all other matters pertaining to families and children. If you are in need of a consultation, please do not hesitate to call our office at 602-383-3610; or you can contact us by email at gary.frank@azbar.org, or through our website at www.garyfranklaw.com.   We look forward to hearing from you.   




[1] “Statistics.” National Coalition Against Domestic Violence. N.p., n.d. Web. 22 Feb. 2017. <http://ncadv.org/learn-more/statistics>